By Brett Rosenberg
September 8, 2003

EPA and Bush Administration officials recently announced their intent to finalize New Source Review (NSR) regulations that would allow thousands of older power plants and other industrial facilities to make extensive upgrades without implementing additional pollution control technology. According to a report in the August 22nd edition of the New York Times, industrial plants will be allowed to spend up to 20 percent of the replacement costs of production equipment on facility upgrades and remain exempt from installing new pollution controls. Previously, NSR regulations required industries to install pollution control devises such as scrubbers or electrostatic precipitators when undertaking anything beyond "routine maintenance," but did not clearly define a specific definition of what would trigger the NSR process.

New Source Review provisions have been among the most divisive of the federal Clean Air Act, largely due to the ambiguity inherent in defining what constitutes routine maintenance. Initially developed as a means of bringing old plants up to date with the current best available pollution control technology rather than shut them down entirely, NSR has instead been at the root of dozens of lawsuits, often with contradictory results.

The new regulations are being hailed by several industrial sectors and the EPA as a rational and cost-effective means of determining when to install new anti-pollution equipment on older facilities. The EPA says the new rules, signed by acting EPA Administrator Marianne Horinko during the week before Labor Day, will encourage more efficient, reliable and safe operations. Meanwhile, much of the environmental community has assailed the EPA's decision as favorable to industrial interests, allowing them to emit more hazardous air pollutants from outdated equipment and removing incentives for pollution reduction.

Confounding NSR matters further, a federal district judge ruled on August 7 that the Ohio Edison Co. violated NSR regulations when it made multiple operational and construction changes at one of its power plants without obtaining the appropriate permits or installing new pollution control mechanisms. The federal judge stated in his decision that Ohio Edison had overstepped the program's routine maintenance exemption on several counts over the course of 14 years, which led to significant emissions increases. The judge's decision could affect many other pending NSR-related lawsuits but its impact on the new regulations remain to be seen. Meanwhile, 13 states, mostly in the Northeast, have asked the U.S. Court of Appeals for the District of Columbia Circuit to grant an injunction to block the new changes.